The Trump administration issued a final rule Monday that allows federal officials to deny green cards to legal immigrants who have received certain public benefits or who are deemed likely to do so in the future.
The “public charge” regulation — pushed by White House senior adviser Stephen Miller and other hard-line officials — is the latest part of President Donald Trump’s vast immigration crackdown. While Trump has railed against migrants arriving at the U.S.-Mexico border, the new regulation represents his most ambitious effort yet to restrict legal immigration as he gears up for his 2020 reelection campaign.
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Acting U.S. Citizenship and Immigration Services Director Ken Cuccinelli praised the regulatory change at a White House press briefing Monday morning.
“President Trump’s administration is reinforcing the ideals of self-sufficiency and personal responsibility, ensuring that immigrants are able to support themselves and become successful here in America,” he said.
Conservative groups such as the Heritage Foundation have touted the measure as a way to limit immigration to self-sufficient foreigners who won’t be a drain on public resources. The Republican Study Committee — a group that includes roughly three-quarters of House GOP lawmakers — praised the regulation as “a step in the right direction” in a budget proposal released in May.
Still, the contentious policy is already triggering legal challenges, with one pro-immigrant group, the Los Angeles-based National Immigration Law Center, announcing this morning that it will file suit. “This latest racially-motivated policy,” said the group’s executive director, Marielena Hincapié, “will have a dire humanitarian impact, forcing some families to forego critical life-saving health care and nutrition.”
James Williams, counsel for Santa Clara County in California, argued the rule “unlawfully and foolishly targets legal immigrants and their families“ and said the county would explore possible litigation.
A coalition of public health associations, educators and pro-migrant activists have argued the public charge rule will force parents to forgo essential services for their children. Both House and Senate Democrats criticized the measure after a draft version published in October.
The benefits covered under the regulation include food stamps, welfare, Medicaid, and housing assistance. Even before the administration issued a proposed rule last year, agencies across the country reported decreased enrollment in a federal nutrition program aimed at pregnant women and children.
The overall thrust of the regulation, which will be effective October 15, is unchanged from the proposed version, but there were some notable differences outlined by USCIS in a related summary released Monday.
The regulation will not consider enrollment in the Children’s Health Insurance Program toward a public charge determination. The draft published this fall asked whether CHIP — which provides low-cost coverage to families that earn too much to qualify for Medicaid — should be included in the list of benefits.
In addition, the use of Medicaid by children, pregnant women, and new mothers during a 60-day period after giving birth will not lead to being labeled a public charge. The final rule also dropped a prescription drug subsidy program, known as Medicare Part D, from a list of restricted benefits.
The final regulation specifically noted that the use of the WIC program, a supplemental food benefit for low to moderate- income pregnant women, infants, and children, would not contribute to a public charge determination.
While the Homeland Security Department acknowledged it was “plausible” the regulation could have a chilling effect driving families away from the nutrition program, the department stopped short of quantifying the phenomenon.
“DHS finds it difficult to predict the rule’s disenrollment impacts with respect to people who are not regulated by this rule, such as people who erroneously believe themselves to be affected,” the final rule reads.
The sweeping 837-page measure builds on statutory language dating to 1882, later reaffirmed in 1952 in the Red Scare-inspired McCarren-Walter Act, that allows immigration officers to deny permanent residency or visas to people deemed likely to become a taxpayer burden. The statutes do not define explicitly what constitutes a “public charge,” but states that age, health, family status, financial resources, education and skills should be taken into account.
The new regulation states that a public charge will be defined as an immigrant who “is more likely than not“ to receive one of the restricted public benefits for an aggregate 12 months or longer during a 36-month period. The receipt of two separate benefits during a one-month period counts as two months, the measure states.
The final rule eliminated a separate threshold for easily monetized benefits that was outlined in a proposed version released in October.
Whether a person is likely to receive the benefits will be decided based on an evaluation of the individual‘s total circumstances, a test that looks at a number of positive and negative factors.
“No single factor alone, including the receipt of public benefits, is outcome determinative,” USCIS said in a related fact sheet.
The use of tax credits for private insurance purchased under the Affordable Care Act will not trigger a public charge determination. However, a person’s enrollment in private health care coverage without the subsidies will count as a positive factor to avoid the public charge label.
The final rule clarified that the use of benefits by U.S. citizens or people not subject to the public charge test will not count against immigrants being scrutinized under the new standard. In addition, the finalized regulation excludes benefit use by immigrants enlisted in the military, as well as their spouses and children.
Refugees and asylum seekers are exempt from the public charge test, as are certain victims of domestic violence and children who qualify for “special immigrant juvenile status,” which is available to minors who were abused, neglected or abandoned by a parent.
POLITICO reported earlier this month that the State Department’s rejection of immigrant visas based on public-charge criteria has increased twelvefold under Trump, with a particularly steep increase for Mexicans, from seven in fiscal year 2016 to 5,343 during the first 10 months of the current fiscal year.
Put another way, the percentage of public charge denials for Mexican applicants rose from less than 1 percent of the total in fiscal 2016 to 44 percent of the total in fiscal 2019 through the end of July.
The State Department is expected to alter its own public charge guidance to align with the standards in the new regulation, which likely will lead to even more denials of immigrant visa applicants abroad.
Separately, a draft rule that deals with deporting immigrants based on a public charge determination remains under review at the White House budget office.
The most closely-watched effect will be on immigrants applying to become permanent residents, a step that can lead to eventual citizenship. The Homeland Security Department estimated in the final rule that roughly 382,000 people seeking to adjust their immigration status could be subjected to a public charge review each year. The non-partisan Migration Policy Institute found that an additional 559,000 people annually could be scrutinized on public charge grounds when applying for immigrant visas from consulates abroad.
However, the measure also could block short-term workers and visitors to the U.S. Approximately 518,000 foreigners with temporary visas seeking to extend their stay each year could be required to demonstrate that they haven’t received certain benefits, according to DHS estimates.
The policy allows foreigners deemed likely to become a public charge to post a bond for a minimum amount of $8,100, which would be returned upon naturalization or when an immigrant departs the country. The finalized amount was lower than the $10,000 proposed in the draft version of the rule, but will increase with the rate of inflation.
The publication of the draft measure in October drew more than 266,000 public comments, a massive response that led to a number of changes to the final regulation.
Still, advocates argued Monday that the Trump administration largely ignored the concerns voiced by opponents.
Julie Linton, a doctor with the American Academy of Pediatrics, said on a call with reporters that she and other medical professionals have serious concerns about the effect of the regulation on immigrant families, but that the Trump administration brushed aside those worries.
“The public charge rule presents immigrant families with an impossible choice,” she said. “Keep one’s family healthy and risk family separation, or forgo vital services, like preventive care and food assistance, so that the family can remain together in this country. Of course, this is not a choice at all.”
Cuccinelli, an immigration hard-liner who joined the administration in June, previously was the Virginia attorney general and a state lawmaker. In those roles, he backed changes to the Constitution to restrict birthright citizenship and sought to deny unemployment benefits to workers who didn’t speak English.
The acting USCIS director batted away a question at the briefing over whether the new regulation would have an outsize effect on Latino immigrants.
“We’re not doing anything new here, we’re simply making effective what Congress had put on the books,” he told a reporter. “If we’d been having this conversation 100 years ago, it would have applied to more Italians.”
Anita Kumar and Helena Bottemiller Evich contributed to this report.